Blawg Review #280

Rosh Hashanah, the beginning of the Jewish New Year, begins this Wednesday night. And what could be a more appropriate occasion for Blawg Review—for us to pass judgment on a world of law blogging about law, justice and perhaps even mercy—than the Day of Judgment? Lest anyone think that Rosh Hashanah is of mere sectarian interest, let such error cease. For Rosh Hashanah is the Day of Judgment for all of humanity—even lawyers. Even judges. Even blawgers!

The “Head of the Year” is not an autumn version of the western world’s New Year’s Eve; in fact, it has little to do with the calendar at all. The month that begins with Rosh Hashanah, in fact (commonly called by the Babylonian name Tishrei), is the seventh month of the Jewish calendar. The first month of the Jewish year is, per Biblical injunction, the month in which the Exodus from Egypt took place. That month is called Nissan, which invokes a particularly sense of excitement for me, not only because of its association with the Exodus and the joy of Passover, but because of that name’s special modern significance to Internet-oriented trademark lawyers such as your blawg reviewer!

But Rosh Hashanah is the day on which the Torah reckons the traditional counting of years since the sixth day of Creation, the day on which God, or Hashem as observant Jews refer to the Deity, imparted His spirit into Adam—the primeval Man, the purpose of Creation, the father of all peoples… and, setting what we lawyers like to call a precedent, the first person to receive a summons and think he really, really could have used a lawyer. Thankfully, the True Judge did not judge Adam’s offense as harshly as He might have—another handy precedent for all of us. As Rabbi Eliahu Kitov explains in his modern-day classic compendium of Jewish lore, The Book of Our Heritage (vol. I, at 20):

The very first Rosh Hashanah of the world—on which Adam was created—was already marked with the values of Judgment and Forgiveness. On that very day, said our Sages, Adam violated the commandment God had given him (concerning the Tree of Knowledge), was judged and then forgiven by God. Whereupon God said to him: You are a sign unto your children; as you were judged before Me this day and emerged forgiven, so will you children be judged before Me this day and emerge forgiven. . . .

Rosh Hashana [thus] is a day of judgment for all the world’s mortals. On this day Man is judged as to the events of his life during the forthcoming year. . . . [As the Talmud states,] “All the world’s inhabitants pass before Him like sheep.”

So “Happy New Year” is not the primary Rosh Hashanah sentiment; rather, we express the wish that we, and those we love, and the very world we live in, see the way clear to merit existence and blessing for another year. For ourselves we ask for clarity as to what was wrong with our previous submissions, the strength to prepare amendment and the time to get the revised prayers, if you will, filed before the record is closed—secure, however, in the knowledge that such rectification, if pled both artfully and with appropriate candor, can be effective in the manner we litigators call nunc pro tunc—and then some.

Heavy, yes, but isn’t every capital trial?

And… in such an awesome moment we, whose lives hang in the balance, presume to “judge” Blawg Review in these waning days of the introspective month of Elul, the month before Rosh Hashanah?

Well, of course. It is only blawg posts passing before us as sheep, not the fate of human souls. Even actual sheep would carry more weight than this. And there is nothing divine at all about this reckoning. Nor do we judge the blawger, merely the blawg. Well, we certainly do if we’re not Scott Greenfield. No, unlike the sins recorded in Scripture (or, pardon the comparison, on Simple Justice), no sins of law-blogging sin will be inscribed in stone, parchment or in the pixels in Blawg Review. After all, when the last shofar blast sounds in our reckoning of “write and wrong,” is any punishment worse, whether meted out to blogger or tweeter, than the ultimate banishment: ignominious neglect? Ah, yes, this too, has its theological parallels … but that’s a topic for another holiday, namely Purim (my birthday! 😉 ), and it’s not Purim… yet!

Let us, then, move on to Blawg Review, and do so in the spirit, may we be forgiven any lack of seriousness or the impropriety of the comparison, of the season. Perhaps we can do so by reviewing the blawgosphere, that slender shadow of a wisp of a fleeting moment of men’s souls, in terms of the Rosh Hashana service. The Hebrew word for “service,” after all, is avodah—which is also translated as a “task,” “work,” or, of course, “labor.” And Blawg Review being a labor of love, and today being the Day of Labor, nothing could be more appropriate than to see our task through the three core themes in the service of the traditional Rosh Hashana liturgy:

Sovereignty

Divine Remembrance; and

Revelation (or “Trumpet Blasts”)

With the caveat that our is not to complete the task, merely to endeavor in it to our best ability, I hope my analogy to these sublime concepts, which I will address in order, will make sense as we apply them to our ridiculous weekly selections.

Sovereignty (Malchuyoth)

It is impossible to address a judge and plead a case, whether one one’s own behalf or as an advocate, unless and until acknowledging the jurisdiction of the tribunal on which that judge sits over the case and the person. On Rosh Hashana, this is a simple matter in conception whose practical applications elude virtually everyone.

As Rabbi Kitov says, “In the ‘order of malchuyoth’ we acknowledge God’s creation of all existence, His Sovereignty over the entire universe, and our acceptance of His dominion unto eternity” (id. at 46). In words we can readily relate to, we must acknowledge that God is, in his omnipotence, to the whole world—and, critically, to us individually—what virtually every Article III judge thinks he is. “Sovereignty,” then can stand in for us here as both jurisdiction and the related concept of judicial restraint.

[A] tradition of greed is typified by a dangerous decision issued this week by a federal judge in Columbus, Ohio, in which Ohio State University was able to use trademark law to suppress a fan web site and magazine devoted to its sports teams, established by a commercial publisher. . . .

The case arose because in the Columbus area, and indeed, throughout the State of Ohio, anything having to do with Ohio State’s major sports teams is a matter of intense public interest. Responding to that interest, a Wisconsin company, which also has a web site called Badger Illustrated and as well as a magazine about the Wisconsin Badgers, created a web site called “Buckeye Illustrated” and announced plans to publish a “Buckeye Gameday” magazine and on “Ohio State Buckeye ebook,” all featuring lavish coverage of Ohio State’s popular sports teams and containing extensive advertising. Instead of welcoming this additional coverage as a form of homage, and considering how a second set of web sites and magazines could intensify public interest and thus help promote the University, Ohio State went to court complaining of the defendants’ attempt to “rip off” Ohio State’s sports enterprise. The university protested that it had just started to license out the right to publish sports programs, instead of doing such publications inhouse, and if outsiders could publish programs without permission, the value of this licensing would be reduced.

Ohio State filed a substantial pile of TRO papers and set a hearing on six days notice. In the minimal time allotted, the defendant’s lawyer, a solo practitioner, was able to file only a response that can fairly be described as flimsy. The next day, the judge heard argument by telephone and granted not only a TRO but a preliminary injunction forbidding the defendants from using any domain names that includes the name Ohio State or Buckeyes, or using the Ohio State or Buckeyes name in any publication.

It is awesome, indeed—and what better spur to repentance?—to witness such a godlike dispensing of life and death. Awesome.

Not only judges take it upon themselves to wield the scythe heartlessly on mere mortals, unrestrained by and yea, contemptuous of any concept that there could be powers or laws greater than they. Across the water, no less humble a public servant than a Member of the British Parliament, Tom Watson (no, not that one! I said British!), writes as a guest blogger for the UK blog formerly known Jack of Kent—now called David Allen Green, oddly enough—about what he describes as an “article in The New York Times on the apparent failure by the [London] Metropolitan Police to properly investigate alleged criminal activity by those working for the mainstream media”—an issue of considerably greater import than who gets to profit from sports trinkets and bulletin boards:

There are possibly hundreds, maybe even thousands, of citizens who have had their privacy illegally invaded. If the police have that information – and they do – then people are entitled to know. There must be a proper investigation of the “investigation” of News International’s internal enquiry. The Bird and Copeland enquiry that News International apparently commissioned has not been published or offered up for examination. The witness evidence to the select committee was vague, with no responsibility taken by anybody. These are matters that have far reaching implications for our democracy.

Democracy? No, it is far better to be “the king”!

And who, really, is “king”—who “rules” regarding reputation and destruction of persons on the Internet? In this battle over dominion, including the issue of Internet anonymity, a fascinating debate is brewing among in the world spawned by the Magna Carta—as exemplified by a fairly sensational post by Charon QC, in the UK, asking, “Is Twitter killing our law? Is blogging killing our law?” (“The days of reading the news in a dinner jacket are long gone – thankfully. Do ‘people’ really rely on the information in newspapers and TV broadcasts these days?”); resulting in this opposing post from the Trial Warrior in Toronto, Canada (“No, there is no right to public information if that information is untrue and damaging to one’s reputation”)—not an unfamiliar topic, either, in these United States either once upon a time or more recently and very much to the contrary from the inimitable (and often unprintable) Marc Randazza.

Finally, as we consider what the law does and does not have to say about the affairs of men, consider the controversy surrounding the so-called Ground Zero Mosque. What does the law have to say about this? Is there any legitimate appeal to the role of the state and the law in deciding if, whither and why this project should proceed, as opposed to whether it’s perhaps just a really bad idea or an unpopular one? The LSAT Blog took on itself the most unenviable task of analyzing, or as some of its commenters would have it, attempting to analyze, the classically logical—as opposed to emotional, political or other—aspects of the debate. Yes, some labor is truly thankless.

Divine Remembrance (Zichronoth)

That last topic evokes strong memories, of course, at this time of year; it certainly does so for your blawg reviewer. This Blawg Review period includes the anniversary of that infamous day in September. We who lived it can never forget it, even as we struggle to remain dispassionate aspects of our civic lives that make us re-live that hurt. Remembrance, in fact, is our second theme—not remembrance of our own pain so much as a plea that our Judge remember it, and much else that makes us who we are and, perhaps, explains our follies from time to time, as He weighs them in the balance.

For if some earthly tribunals forget, from time to time, the limitations on their power over men, in contrast the idea of “forgetting” is, axiomatically, inapplicable to a timeless, physically unlimited real Deity, the rabbis explain. “Nor is He limited in ‘understanding’ the inner thoughts of His creatures. Nevertheless, we ask that He ‘remember’ only the ‘good’ in our behalf when He Judges us”—including, we learn, the good of our meritorious forebears. Thus Rosh Hashanah is referred to in the Torah as the Day of Remembrance—and in this idea lies, as well, the seed of our own redemption from harsh judgment. For there can be no improvement, no growth, without reflection as to our own state, regret over what has been lost and a commitment to redeem… ourselves.

Thus before continuing with links, and, again, with apologies for the crass, deadline-driven comparison, it is appropriate from both an ecumenical and national perspective to remember, this Labor Day, the labor of those who have preceded us in this effort as well: Namely George’s Employment Blawg, which in Blawg Review #124, which itself recalled for us the merits of the works, and work, of those who came before us in all these mundane ways. May its remembrance be for a linking!

Remembrance, then, is “obviously” analogized, pursuant to the preposterous and exhausting theological mish-mosh of this week’s Blawg Review, to our advocacy—to citation to the record; to argument from precedent; to, again, a prayer for relief. How can we be inspired in our own service—to our clients and the greater good—from the last week of law blawging?

David Bernstein writes, at The Volokh Conspiracy, about a particularly awkward, sensitive and charged legal case: The application of a dress code… in a private Christian school… in the State of Israel… to the wearing of a hijab by a Muslim teacher.

David Luban reports, at his Balkanization blog, on a divided Ninth Circuit opinion about whether leaving water bottles for illegal immigrants traversing the wilderness, in order to avoid their death by dehydration, is properly deemed littering. The court ruled that it was not. The parallel here to the story of Hagar and Ishmael—and the timing of this blog post, considering that this biblical account is read in the synagogue on Rosh Hashanah—are almost eerie.

Down in South Florida they’re taking a skeptical look at recent proceedings involving one Rick Scott, whose deposition transcript, posted at the blog, demonstrates the one thing you really, really don’t like to see as a witness’s attorney at a civil deposition: repeated recourse by the witness, in response to questions, to the Fifth Amendment right against self-incrimination.

Michael Atkins, the Seattle Trademark Blogger, finds another example of the same that’s raising the roof in Seattle.

Staci Riordan addresses, on her Fashion Law Blog, the scary prospect of congressional tinkering with copyright to “protect” fashion designers that could be extremely unfabulous.

Andrew Mackie-Mason asks, at his Source 4 Politics blog, the very logical question, in light of a prosecution in Texas for the crime of bigamy, of how on earth—given where our sage judges have taken us in writing a living, loving constitution for us all—the classification of this alterno-family lifestyle choice as a crime can withstand Fourteenth Amendment scrutiny.

Evan Brown’s Internet Cases blog reports on an appellate decision reversing a trial judge’s prohibition of “googling” the names of jurors during jury selection in New Jersey.

And finally, what could be more appropriate a reckoning of remembrance and accountability, as well as a sterling reminder of whom it is, indeed, the bell tolls for as we encounter our Judgment, than this piece by Lynne Butler, author of the Estate Law Canada blog, in which she lays out everything that goes into the accounting by the executor of decedent’s estate. As she says, apropos of our the spiritual accounting incumbent on us all this week:

The basic idea behind the executor’s accounting is to describe what has happened with each of the assets in the estate and subtract all of the bills and liabilities that were paid out, to arrive at the present value of the estate.

A “statement” worthy, in this season, of the most profound consideration—yes; it is one to remember. And this brings us to the last category.

Revelation (Shofroth)

The last theme of the day on Rosh Hashanah is symbolized by the iconic blast of the shofar, a trumpet made out of a ram’s horn, which recalls the trumpets of the Revelation of the Law, bespeaks redemption and unmistakably symbolizes “final” judgment:

Why do we sound the Shofar? What is it supposed to accomplish? The Sefer HaChinuch[, a comprehensive early work on Jewish law and outlook.] tells us that we must understand the nature of “man,” human beings. As “man” is a creature from the physical realm, he is only aroused and inspired to action by something stirring, something that will cause him to snap out of the ordinary routine. We see this concept in practice at a time of war: In order to stir up the troops, trumpets are sounded, in hope that this arouses and motivates the soldiers to action. On Rosh HaShana, we do the same. We “awaken,” by means of the Shofar, all who are to be judged on this day. We try to incite all who have sinned to plead with Hashem and request mercy from Him when judging. Hashem is receptive, as he is gracious, compassionate and forgiving, of those who return to Him with a complete heart. If the sounding of the Shofar has its intended effect, Hashem will graciously accept the repentance of all on Rosh HaShana.

The sound that eminates from and the shape of the Shofar are meant to inspire us as well.

I hope something in the service I have tried to render with today’s Blawg Review will inspire someone—Jew, gentile, believer, agnostic, denier—maybe even me—to aspire, in this season, to something transcending our annual return to the life of lawyering following the Labor Day weekend. As we settle back into to our desks and our dockets, perhaps some still, small voice inside can be heard within us to remind us that while our responsibilities to others are as important as they seem, so much else that we make so much about is, really, so little.

This will, for sure, be a different Rosh Hashanah for me. The child whose loving father brought him, hardly comprehending, to the synagogue on these Holy Days in a passionate, simple, gesture of Remembrance is now a graying man himself, with two children at his own heels and two away at school. And, as my father was then, I go this year into the Day of Judgment bereft, for the first time, of my own father. And now I stand before the True Judge—who is, mercifully, also my Father—in a new, lonely way. It is a representation for which 20 years of conferences, motions and trials have not prepared me.

And this, of course, makes me just the same as everyone else. Perhaps if, for a moment, I can see this regarding myself and the child in wing-tips clearing his throat at the lectern, I can see that child in everyone around me, too, and display to them the same empathy, patience and understanding for which I am applying in the case at bar.

And, hopefully, in doing so I won’t take myself and my precious empathy and wisdom too, too darned seriously either.

But for all those grey hairs, born as they are of this engagement, I pray that this matter remain “open” for many years to come; that the entries on my docket sheet act enhance the causes of those souls who came before me and enabled me to live the fortunate life that I do; and that we all be inscribed for a year of good in which we come to a true acknowledgment of our place in the world and our duties to it; a year of redemption and brotherhood; and a year of life lived by all of us—even lawyers, even judges, even blawgers—with appreciation for the year of life that it is.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

Do the pictures bear any actual relation to the article? I can’t figure out how some of them tie into your themes.

The Title, the Blog and the Blogger

The question of whether consumers are likely to be confused is the signal inquiry that determines if a trademark infringement claim is valid. I write here about trademark law, copyright law, brands, free speech (mostly as it relates to the Internet) and legal issues related to blogging. That may sound like a lot, but it's just a blog.

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